R v Zancan
[2009] VSCA 11
•6 February 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 646 of 2008
| THE QUEEN |
| v |
| TRAVIS JAMES ZANCAN |
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JUDGES: | NETTLE and DODDS-STREETON JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 6 February 2009 | |
DATE OF JUDGMENT: | 6 February 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 11 | |
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CRIMINAL LAW – Sentencing – Prohibited person in possession of firearm – Numerous delays over more than five years – Procedural fairness – Whether judge erred in finding appellant’s own intention was to delay hearing as long as possible – Issue of weight to be given to delay as appellant continued offending throughout period of delay – Appeal dismissed – R v Todd (1982) 2 NSWLR 517, 519, R v Nikodjevic [2004] VSCA 222, referred to.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr S Ward, Acting Solicitor for Public Prosecutions |
| For the Appellant | Mr T Kassimatis | Valos Black & Associates |
NETTLE JA:
On 31 July 2003, the appellant was charged on summons with one offence of being a prohibited person in possession of a firearm and one of being a prohibited person in possession of a silencer.
The matter was originally listed for hearing in the Magistrates' Court[1] after which it proceeded for the next three years in that court without determination as follows:
[1]The charges of being a prohibited person in possession of a firearm and being a prohibited person in possession of a silencer are indictable offences triable summarily. (See s 53 and schedule 4 of the Magistrates’ Court Act 1989.)
Date Court Location Hearing Type Result 8 September 2003 Broadmeadows Mention
Adjourned to 6 October 2003. 6 October 2003 Broadmeadows Mention Adjourned to 5 November 2003. 5 November 2003 Broadmeadows Contest Mention Adjourned to 15 April 2004. 15 April 2004 Melbourne Mention Adjourned to 17 September 2004. 17 September 2004 Melbourne Plea hearing Adjourned to 12 November 2004. 12 November 2004 Melbourne Plea hearing Adjourned to 8 December 2004. 8 December 2004 Broadmeadows Contest Mention Appellant failed to appear and a warrant was issued. Adjourned to a date to be fixed. 29 December 2004 Melbourne Contest Mention Application for bail refused. Remanded to 21 February 2005. 21 February 2005 Melbourne Mention Remanded to 22 March 2005. 22 March 2005 Melbourne Mention Remanded to 26 April 2005. 26 April 2005 Melbourne Mention Remanded to 24 May 2005. 24 May 2005 Melbourne Mention Remanded to 10 June 2005. 10 June 2005 Melbourne Mention Remanded to 1 July 2005. 1 July 2005 Melbourne Mention Remanded to 11 August 2005. 11 August 2005 Broadmeadows Mention Remanded to 8 September 2005. 8 September 2005 Broadmeadows Mention Remanded to 26 September 2005. 26 September 2005 Broadmeadows Mention Remanded to 30 November 2005. 30 November 2005 Broadmeadows Contest Mention Remanded to 27 January 2006. 19 December 2005 Melbourne Application for bail Adjourned to 21 December 2005. 21 December 2005 Melbourne Application for bail Application for bail granted with conditions. 27 January 2006 Broadmeadows Contest Mention Remanded to 3 May 2006. Bail extended. 3 May 2006 Broadmeadows Hearing Remanded to 31 July 2006. Bail extended. 31 July 2006 Broadmeadows Hearing Remanded to 2 August 2006. Bail extended.
On 31 July 2006, the appellant elected not to have the matter tried summarily and on 2 August 2006 a Filing Hearing was conducted in the Magistrates' Court at Melbourne. On that occasion, the appellant's bail was extended, although he was in custody on other matters.
On 25 October 2006 a Committal Mention was conducted and a Committal hearing was listed for 12 February 2007 at the Magistrates’ Court at Broadmeadows. Once again, the appellant’s bail was extended although he was in custody on other matters, but on 31 October 2006 bail was revoked when the appellant was refused bail on other matters.
A Committal Hearing was conducted at the Magistrates’ Court at Broadmeadows on 12 February 2007 and at the conclusion of the hearing the appellant was directed to stand trial at the County Court at Melbourne. He entered a plea of Not Guilty and the matter was listed for Case Conference in the County Court at Melbourne on 23 April 2007. The appellant was remanded in custody.
On 26 March 2007 the appellant made an Application for Bail in the Magistrates’ Court at Melbourne but it was adjourned sine die on the appellant’s application to enable his solicitors to obtain a psychiatric report in support of the application. Once the psychiatric report was obtained, however, the Application for Bail was re listed for hearing in the Magistrates’ Court at Melbourne on 13 April 2007 and the application was granted with conditions.
On 23 April 2007 the matter was listed for a Case Conference in the County Court at Melbourne before the Chief Judge. A Directions Hearing was listed for 5 February 2008 and a trial was listed for 11 March 2008. A Further Case Conference was listed for 4 June 2008 as there was some ongoing discussion between the parties with a view to resolving the matter. The appellant’s bail was extended on the condition that he report to the County Court Registry by 4pm that day.
On 4 June 2008 the matter was listed for a Case Conference in the County Court at Melbourne. On that occasion, the Court was advised that the matter had not resolved and the dates that had been fixed for the Directions Hearing and Trial were confirmed. The appellant’s bail was extended on the condition that he report to the County Court Registry by 4pm that day.
On 5 February 2008 the matter was listed for a further Directions Hearing before the Chief Judge. The trial date of 11 March 2008 was confirmed and the trial presentment was filed. The appellant’s bail was extended on the same terms and conditions although he was in custody on other matters.
The matter was listed for trial in the County Court at Melbourne on 11 March 2008. On that day a voir dire was held as to the voluntariness of the record of interview. At the conclusion of the voir dire the trial judge ruled that the record of interview was admissible.
On 12 March the appellant was arraigned and pleaded Not Guilty to both counts and the trial proceeded. At the conclusion of the trial on 13 March 2008 the jury returned a verdict of Guilty on the count of being a prohibited person in possession of a firearm but Not Guilty on the count of being in possession of the silencer.
The plea proceeded on 14 March and was adjourned at the end of that day for further hearing with directions that the parties file a joint written submission regarding pre-sentence detention by 28 March.
Following provision of that submission, on 30 April 2008 the judge sentenced the appellant on the count of being a prohibited person in possession of a firearm to a term of two years and nine months' imprisonment[2] with a non-parole period of one year and ten months.
[2]The maximum penalty for the offence is 600 penalty units or seven years’ imprisonment: Firearms Act 1996, s 5(1).
The appellant now appeals with leave against the sentence on two grounds: first, that the judge made a finding adverse to the accused without affording the appellant procedural fairness in relation to that issue; and, secondly, that the judge erred in discounting the ameliorating effect of delay upon the length of sentence to be imposed.
Ground 1: Procedural fairness
As has been seen, there was a delay of more than five years between the time when the appellant was first charged with the offence of being in possession of the firearm and the time of sentencing. In the course of the appellant's plea, defence counsel invoked that delay as a factor in mitigation of penalty, as follows:
Your Honour, so far as this matter is concerned, whilst the offence occurred on 3 June 2003, and you’re now going on five years, and this is not a submission that the delay is caused by the prosecution or the police, as [it] apparently has a very long history of adjournments at the behest of my client, so it is not a situation where I can come to your Honour and say, well, there’s been an unwarranted delay.
…
Sometimes delay can be put … on the basis that there was absolutely no fault on the part of the accused and that might give more gravitas to the delay. That aspect I cannot put. But there is significant delay in this matter being resolved, the matter commencing at a time when my client was in his relatively early youth at the age of 21 and now five years down the track there is a not inconsiderable delay in terms of him being finally dealt with, so I do ask your Honour to take into account the issue of delay as being a relevant fact. I cannot put the further scenario of through no fault of his own, but in any event it is not insignificant[t] fact that I rely upon.
There was then the following exchange between the judge and defence counsel:
[HIS HONOUR]: How many requests at your client’s – on his application, how many adjournment were there, or what’s the story?
[COUNSEL]: Twenty-one applications for adjournments over a period of time. Your Honour, theses charges were charges, I believe, that were indictable - triable summarily at that stage, and there was an election to have them uplifted into the indictable stream. There was a committal and there were, it must be said, many delays that were incurred during that entire process.
[HIS HONOUR]: During the committal?
[COUNSEL]: Well, during the whole running of this matter. I think from memory, your Honour, there was one police adjournment out of that 21.
[HIS HONOUR]: And 20 by the defence?
[COUNSEL]: That’s correct.
Subsequently, in his sentencing remarks, the judge said this about the delay:
There has been a delay of almost six years between your commission of this offence and your sentence today. You elected to conduct a contested committal heard in February 2007. The court processes were adjourned 21 times, and 20 of those adjournments were made on your application. You were found guilty at the end of a two day trial. There were no factual or legal complications at the hearing of that trial, and although I have no information as to the basis of your adjournment applications I conclude that it was your intention to delay the hearing of this matter for as long as you were able to do so.
His Honour then referred to R v Miceli[3] and R v Merrett, Piggott and Ferrari[4] and continued:
Those cases are in contrast to your position. You have continued to offend and it could not be suggested that since your present offending you have made any attempt at rehabilitation. For that reason and the fact that much of the delay has been the result of your 20 applications to adjourn these proceedings, the impact of delay on any reduction of your sentence will be very much reduced. The decision is supported by R v Tiburcy & Ors[5] and R v Rasim Tezer.[6]
[3](1994) 4 VR 588, 591.
[4](2007) 14 VR 392, 401.
[5][2006] VSCA 244.
[6][2007] VSC 123, [45].
Under cover of ground 1, counsel for the appellant argued that the judge had erred in finding that it was the appellant's intention to delay the hearing of the matter for as long as he was able to do so. In counsel's submission it was plain from the judge's own remarks that his Honour did not have any information as to the basis of the appellant's adjournment applications and, logically, there could well have been a number of other reasons for those applications. It followed, in counsel's submission, that the judge could not have been satisfied beyond reasonable doubt that the reason for the application was an intention to delay the hearing as long as possible, and thus that his Honour was not entitled to make that finding adverse to the appellant.[7]
[7]R v Storey [1998] 1 VR 359, 369; Cheung v The Queen (2001) 209 CLR 1.
I accept that submission. Like the judge, I am inclined to think that the probable cause of many of the appellant's applications for adjournment was an intention to delay the hearing but, as the judge said, there was no information as to what lay behind many of the adjournment applications and, consequently, in my view one could not exclude as a reasonable possibility that some if not all of the applications for adjournment were motivated by something other than a wish to delay the matter.
Counsel for the appellant argued further that, whether or not it was open to the judge on the evidence to find that the applications for adjournment were motivated by a wish to delay, his Honour should not have proceeded to make the finding without first warning defence counsel of that possibility and affording counsel the opportunity to adduce further evidence.
I accept that submission in part. Conceivably the failure of the judge to alert counsel of his suspicions deprived defence counsel of the opportunity to point out that it was not open on the evidence to be satisfied of those suspicions beyond reasonable doubt.[8] It follows that the judge's failure to alert counsel could have resulted in the judge coming to the conclusion that the delay was deliberate when otherwise his Honour would not have done so.[9] There was, however, nothing in the evidence before the judge below as to there being any reason, apart from a wish to delay, for the appellant's many adjournment applications. In those circumstances, it is not to be supposed that there was such evidence which could or might have been tendered.
[8]Cf R v Healey [2008] VSCA 132, [45]–[46] (Neave JA).
[9]Cf R v Alexandridis [2008] VSCA 126, [19] (Redlich JA).
So to say is not to deny that the appellant was and is entitled to the benefit of the doubt which results from the logical possibility that there could have been another or other causes of delay. But that is a different thing to being deprived of an opportunity to adduce positive evidence in support of that doubt. There being nothing to suggest that such evidence existed, I am not persuaded that the judge's failure to alert defence counsel deprived counsel of any opportunity to adduce it.[10]
[10]Cf Stead v State Government Insurance Office (1986) 161 CLR 141, 145-6; Ucar v Nylex (2007) 17 VR 492, [59]–[64].
Counsel for the respondent submitted that, even if the judge did err in finding that the appellant's many adjournment applications were motivated by an intention to delay as long as possible, it was not apparent that the finding had any effect on the sentence imposed. He argued that the judge's reference to the appellant's intention to delay was really no more than a gratuitous aside, as was demonstrated, it was said, by the fact that the judge did allow for delay notwithstanding the adverse finding as to its cause.
I reject that argument. It appears to me from the way in which the judge invoked R v Tiburcy[11] in support of his analysis that his Honour had in mind the observation of Maxwell P to the effect that, where delay results from obstruction or lack of cooperation, the mitigatory weight to be accorded to delay is likely to be less.[12] It was upon that basis that the judge said that the impact of any reduction on sentence would be very much reduced. According therefore, to the natural and ordinary meaning of his Honour's sentencing remarks, the judge was in effect saying that he was satisfied that the appellant had been obstructive or uncooperative – by deliberately delaying the proceeding as long as he could – and for that reason that there should be less weight given to delay than would otherwise be the case.
[11][2006] VSCA 244.
[12]Ibid [25].
It is true, as counsel for the respondent submitted, that the judge also discounted the effects of delay because of the appellant's continued offending throughout the period of delay, and the absence of any attempt at rehabilitation. Indeed, I think that that is likely to have been the principal informing consideration. But it is not possible reasonably to construe his Honour's sentencing remarks as meaning that the appellant's supposed wish to delay the proceeding as long as possible did not play some role in his Honour's determination.
Ground 2: Delay
I turn then to the question of what weight should be given to the effects of delay.
Other things being equal, the consequence of what I have said thus far would be that the sentencing discretion would be seen to have miscarried and should now be exercised afresh. In that event it would be both unnecessary and undesirable to pass upon the further submissions advanced under Ground 2 as to the extent to which the judge should have allowed for delay and therefore mitigated the sentence to be imposed.
As it is, however, it seems to me that there is a good deal in his Honour's sentencing remarks which is of assistance in the determination of the allowance to be made for delay. In particular I note his Honour's observations that:
Your previous long-arm licence was cancelled in 2001 and you were not the holder of a firearms licence in 2003, and you were prohibited from holding such a licence…
On 4 June 2003 you took part in a police record of interview. You said that nine months before you were give the weapon by a friend for safe-keeping. You said that you accepted the weapon because your father had been in some trouble and that it would be useful to provide protection if persons tried to hurt your family. You denied knowledge that the revolver was loaded. A denial, that, given you previous interest in and experience with firearms, I reject.
You are now aged 26. You had the support of your parents during the trial. You were a poor student, and after six months ended a TAFE course. You worked with you father for several years. He operated a rubbish tip. You used marijuana from the age of 14; amphetamines and occasionally some heroin from the age of 18.
You have admitted previous offending. In June 2001 you were convicted of six firearms offences, robbery and intentionally causing injury. A loaded .45 colt automatic revolver was found lying on your bed. You were sentenced to detention in a Youth Training Centre for six months and fines were imposed. In September 2001 you were convicted of armed robbery with a knife, and False imprisonment. A total effective sentence was imposed of detention for 12 months in a Youth Training Centre.
…
In your case there is a strong need for deterrence of you personally. Your prior history supports that conclusion and your post-offending record suggests that you have limited prospects of rehabilitation.
Similarly, the judge dealt at length with the time which the appellant had spent in custody since the time of offending, in relation to other matters:
… A document headed ‘Further Submissions on Sentence’, dated 22 March 2008 was filed with the court on behalf of the Office of Public Prosecutions. It sets out that since your offending in this matter you have been imprisoned on a series of offences; in some instances awaiting trial, and in other instances serving sentences. I calculate from that document that since June 2003 you have spent the following approximate periods in custody. May 2004 to December 2004, which is a period of up to 12 months, although it is not clear the exact period that you spent on that occasion; August 2006 to April 2007, a period of nine months; August 2007 to mid September 2007, which is a period of half a month, and November 2007 to March 2008, four months. That makes a total of approximately 26 months detention.
You were in custody awaiting trial from 12 August 2006 to 31 October 2006, a period of 81 days. You were acquitted of those counts. I therefore take the whole of that period into account in relation to the sentence to be imposed today.
None of those observations was the subject of any criticism and I see no reason not to accept them.
It remains to determine the weight to be given to the effects of delay, and for that purpose it is useful to take as a starting point the observations of Street CJ in R v Todd[13] that, where there has been a lengthy period of delay, fairness to a prisoner requires that weight be given to the progress of his rehabilitation during the period of delay and to the circumstance that he may have been left in a state of uncertain suspense as to what would happen when it came time to be sentenced. Sometimes, therefore, sentencing for a stale crime may call for a considerable measure of understanding and flexibility of approach, and the situation of the prisoner at the time of sentencing may come to play a dominant role in the determination of the sentence to be imposed. Occasionally, it is necessary to extend to the prisoner what might otherwise be regarded as undue leniency.
[13](1982) 2 NSWLR 517, 519.
At the same time, however, it is also as well to remember the cautionary observations of Ormiston JA in R v Nikodjevic[14] that, although delay in sentencing may be significant where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time, or where that person has chosen to re-organise his or her life and upon acceptance of guilt for the matters charged, and that delay is not infrequently put forward as a factor to be considered in a case of first offenders who have committed serious offences for which they may feel uncertain whether they were required to serve any term of imprisonment at all, the truth of the matter is that every case is different and the factors seen properly to affect the exercise of the sentencing discretion will vary according to the circumstances. As Ormiston JA put it:
One should therefore be cautious about asserting that there is a right to some automatic discount in every case of asserted delay. The most that can be said is that where the prosecuting authorities have in fact unduly delayed bringing the matter to court, there is much more likely to be such a discount without the need to have regard to its particular consequences.
[14][2004] VSCA 222, [22]–[23].
So informed, I do not consider that there is much about the delay in this case which is favourable to the appellant. He was not a first offender. As the judge observed, he had previous convictions for firearms offences, robbery and intentionally causing injury, and at the time of his previous offending he had been found in possession of a loaded .45 Colt automatic for which he had been sentenced to detention in a Youth Training Centre for six months and fined. He had also been convicted of armed robbery with a knife and false imprisonment, for which he had been sentenced to detention for 12 months in a Youth Training Centre. Consequently, he was unlikely to have been in much doubt about the outcome if he were convicted - for his previous record and subsequent offending meant it almost inevitable that he would be sentenced to gaol - and so far from using the period of delay to put his offending behind him and get on with a new and worthwhile stage of his existence, he continued throughout the period of delay to offend frequently and he was sentenced for it to gaol almost as frequently.[15]
[15]Cf R v V (1998) 99 A Crim R; R v Reeves [2002] NSWCCA 33, [12].
All things considered, I have come to a similar view to the judge as to the weight which should be given to the effects of delay. As has been said, the judge concluded that the impact of delay on any reduction of the appellant's sentence needed to be much reduced. His Honour did so, however, on the basis of the impermissible premise that the appellant had engineered the delay in a deliberate endeavour to delay the proceeding as long as he could. For the reasons I have now given, I have come to the same view about the extent to which the sentence should
be mitigated for the effects of delay, albeit that I have done so upon the separate and different basis that nothing which occurred in the course of delay warrants a substantial discount.
Conclusion and orders
It follows that I am not persuaded that a different sentence should have been passed or different orders made. I would therefore dismiss this appeal.
DODDS-STREETON JA:
I agree.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
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